Succession of Jones

999 So. 2d 3, 8 La.App. 3 Cir. 1088, 2008 La. App. LEXIS 1371, 2008 WL 4767164
CourtLouisiana Court of Appeal
DecidedOctober 29, 2008
DocketNo. 08-1088
StatusPublished
Cited by3 cases

This text of 999 So. 2d 3 (Succession of Jones) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Jones, 999 So. 2d 3, 8 La.App. 3 Cir. 1088, 2008 La. App. LEXIS 1371, 2008 WL 4767164 (La. Ct. App. 2008).

Opinion

PAINTER, Judge.

11 Upon the lodging of the appeal record in the instant suit, this court sue sponte issued a rule to show cause why the appeal should not be dismissed as having been taken from a partial final judgment not designated as immediately appealable. For the reasons assigned, we hereby designate the judgment as final and appeal-able and maintain the appeal.

The decedent, David Jones, was married at least two times. His first marriage, entered into on October 8, 1956, was to Harriett Boyer Jones, and from this marriage, three children were born. According to the trial court’s written reasons for judgment, David and Harriett were divorced on February 24, 1976. Evidence was presented that David and Harriett remarried on April 12, 1978, in Harris County, Texas. The trial court found that on September 12, 1978, David filed for separation and divorce on the basis that Harriett would not return to Louisiana. The trial court found that “[tjhe record does not indicate that Colonel [David] Jones was ever successful in securing the final paperwork to terminate that marriage [second marriage to Harriett] in Rapides Parish.” Later, on April 8, 1983, David Jones married Ethel. According to the trial court, from that day forward, David and Ethel acted as a legally married couple.

On April 20, 2005, Ethel LeDuff Jones filed a petition for probate of statutory testament of David Jones, Jr., who died on [5]*5March 31, 2005. In accordance with the testament, the trial court named Ethel executrix. Before a judgment of possession was entered, on April 25, 2006, Harriett Boyer Jones filed a petition for declaration of nullity of marriage and for possession. In Harriett’s petition, she alleged that her second marriage to David was never dissolved and that Ethel had knowledge of the |2aforementioned purported fact when she entered into a marriage with David. In addition to seeking to have the marriage of David and Ethel declared null, Harriett also sought to be put in possession of her half of the community property acquired during the time she was married to David and during the time in which David was married to Ethel.

Subsequent to the filing of Harriett’s petition, Harriett filed a motion for partial summary judgment in which she sought to have the marriage between David and Ethel declared null. The trial court held a hearing on the motion for partial summary judgment, and the trial court denied it. The record indicates that a trial was held on January 3, 2008, to determine to whom David Jones was married at the time of his death. At the conclusion of this trial, the trial court held, in a written judgment dated March 6, 2008, that Ethel was the legal wife of David and “recognized [her] as possessing all legal rights associated therewith as legal spouse.” Notice of the signing of judgment was sent on March 11, 2008. A motion for appeal was filed on April 24, 2008.

The instant record was lodged with this court on August 26, 2008. On September 5, 2008, this court issued sue sponte a rule to show cause why the appeal should not be dismissed as having been taken from a partial final judgment not designated ap-pealable. In response to the rule, Harriett argues that the judgment from which an appeal is being sought is “a final judgment with respect to [the claims between] Harriett Boyer Jones and Ethel LeDuff Jones.”

The trial court failed to designate the judgment from which appeal is being sought, as immediately appealable. Because the trial court did not designate the judgment as final or give reasons why the judgment should be allowed an immediate appeal, we find the de novo standard of review is applicable. See generally R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113.

Louisiana Code of Civil Procedure Article 1841 provides that a final judgment is one that “determines the merits in whole or in part.” Louisiana Code of Civil Procedure Article 1915 further provides, in pertinent part, the following:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
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B. (1) When a court renders a partial judgment ... as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and [6]*6liabilities of fewer than all the parties shall ... not constitute a final judgment for the purposes of appeal.

In Messinger, 894 So.2d 1113, the supreme court found that a trial court should give express reasons why there is no just reason for delay of an appeal of a partial final judgment. However, should the trial court fail to certify a partial final judgment, the Messinger court found that an appellate court cannot summarily dismiss the appeal. Instead, when the trial court fails to give reasons for designating a partial summary judgment as appealable, the Messinger court held that the appellate court should make a de novo determination by looking to the record for the existence of any justification for maintaining the appeal. The Messinger court additionally found that the appellate court could alternatively issue a rule to show cause why the appeal should not be dismissed.

Recently, in Fakier v. State, Bd. of Supervisors for Univ. of La. Sys., 08-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024, this court examined the issue of whether a partial judgment was a final judgment for purposes of an immediate appeal. The court noted that Messinger, 894 So.2d 1113, adopted from Allis-Chalmers Coup. v. Philadelphia Elec. Co., 521 F.2d 360 (3rd Cir.1975), several non-exclusive factors for use by trial courts when determining certification of a judgment and for use by appellate courts when conducting de novo reviews when no reasons are given by the trial court for designation. The factors for examining certification are:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Fakier, 983 So.2d at 1029, quoting Messinger, 894 So.2d at 1122.

Harnett submits that the judgment from which appeal is being sought is ap-pealable pursuant to La.Code Civ.P. art. 1915(A)(1).

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Bluebook (online)
999 So. 2d 3, 8 La.App. 3 Cir. 1088, 2008 La. App. LEXIS 1371, 2008 WL 4767164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-jones-lactapp-2008.